When a litigant raises an issue for the first time on appeal, he
or she is deemed to have waived the right to challenge the issue unless it
involves a plain error that is obvious and substantial and that seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App. 2004).

Constitutional Law
) Due Process ) Notice and
Hearing

The trial court has an obligation to insure that a defendant was
served with the notice of trial issued by the trial court, and on that basis an
appellate court will reverse the trial court judgment and remand the case for a
new trial. Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App.
2004).

Rule 60(b)(1) provides that a court may relieve an affected
party from judgment on the basis of mistake, inadvertence, surprise, or
excusable neglect. Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App.
2004).

Appellate Review
) Standard of
Review

An abuse of discretion occurs when 1) the court’s decision is
clearly unreasonable, arbitrary, or fanciful; 2) the decision is based on an
erroneous conclusion of law; 3) the court’s findings are clearly erroneous; or
4) the record contains no evidence on which the court rationally could have
based its decision. Such abuses must be unusual and exceptional; an appeals
court will not merely substitute its judgment for that of the trial judge.
Panuelo v. Amayo, 12 FSM Intrm. 365, 372 (App. 2004).

A trial court commits an abuse of discretion when it commits
legal error by denying a motion for relief from judgment when a defendant was
surprised by the date and time of trial since he was never served with a notice
of trial because the trial court erred when, through its clerks’ office, it
failed to serve notice of the trial date and time on the pro se litigant. This
error seriously affected the judicial

When a court allows an attorney’s limited appearance, it is not
clear whether litigants represented in a limited manner understand that their
attorney is not taking full responsibility for prosecuting or defending them.
Thus trial judges should consider carefully, on a case_by_case basis, whether to
allow "limited appearances." As a general rule, attorneys should either enter
formal appearances and accept full responsibility for a case, or not be
permitted to appear before the court. Panuelo v. Amayo, 12 FSM Intrm.
365, 373 (App. 2004).

If the court learns that an attorney is providing legal advice
and/or drafting documents for a pro se litigant but concealing that fact from
the court, the court should consider ordering the attorney to file a formal
notice of appearance or be subjected to sanctions. Panuelo v. Amayo, 12
FSM Intrm. 365, 373-74 (App. 2004).

When the fundamental tenets of due process are violated by the
trial court’s failure to provide notice of the trial to a pro se litigant, the
trial court’s later denial of his motion for relief from judgment under Rule 60
is an abuse of discretion. Panuelo v. Amayo, 12 FSM Intrm. 365, 374 (App.
2004).

Constitutional Law
) Due Process ) Notice and
Hearing

Notice and an opportunity to be heard are the essence of due
process of law. Panuelo v. Amayo, 12 FSM Intrm. 365, 374 (App.
2004).

Constitutional Law
) Due Process ) Notice and
Hearing

Specific requirements of due process may vary depending on the
nature of decisions to be made and the circumstances. At the core however is the
right to be heard. Panuelo v. Amayo, 12 FSM Intrm. 365, 374 (App.
2004).

Constitutional Law
) Due Process

The fundamental concept of procedural due process is that the
government may not be permitted to strip citizens of "life, liberty or property"
in an unfair, arbitrary manner. Before such important individual interests are
exposed to possible governmental taking or deprivation, the Constitution
requires that the government follow procedures calculated to assure a fair and
rational decision making process. Panuelo v. Amayo, 12 FSM Intrm. 365,
374 (App. 2004).

Even when a litigant was provided with a subpoena by opposing
counsel, which accurately stated the trial date, it is essential that the trial
court insure that its own notice procedures satisfy the requirements of due
process, especially where pro se litigants are involved. When unrepresented
parties are deluged with legal documents drafted by attorneys on the opposing
side, it is conceivable that confusion will result. Panuelo v. Amayo, 12
FSM Intrm. 365, 374 (App. 2004).

Civil Procedure
) Notice

Except as otherwise provided in the rules or by court order,
every written notice must be served upon each of the parties. It is mandatory
for the court to serve notices on parties, unless they are in default. The court
must insure that its own notices and orders are properly served on pro se
litigants ) pro se litigants should not be compelled to rely upon
opposing counsel to inform them of a trial date.

When the trial court easily could have concluded a trial on the
full merits of the case by extending or delaying the proceedings for a few extra
hours, but chose instead to base its determination of liability upon evidence
that a litigant did not have an opportunity to oppose because of lack of
court-issued notice of trial, and when the law favors the disposition of cases
on their merits, the trial court’s error in failing to insure that it provided
the litigant with notice of the trial date and time brings into question the
fairness, integrity, and public reputation of judicial proceedings. Panuelo
v. Amayo, 12 FSM Intrm. 365, 375 (App. 2004).

Constitutional Law
) Due Process ) Notice and
Hearing

The procedural due process guarantee of notice protects not only
the parties involved but upholds the court’s integrity as well. Panuelo v.
Amayo, 12 FSM Intrm. 365, 375 (App. 2004).

Constitutional Law
) Due Process ) Notice and
Hearing

A trial court commits plain error, and violates the litigant’s
right to due process, when it fails to serve notice of a trial date and time on
a pro se litigant. It therefore abuses its discretion when it denied the
litigant’s motion for a new trial. Panuelo v. Amayo, 12 FSM Intrm. 365,
375 (App. 2004).

* * * *

COURT’S OPINION

ANDON L.
AMARAICH, Chief Justice:

Appellant Panuelo appeals from a judgment entered by the trial court in favor of
the Appellees ("the Amayos") and against Panuelo on June 14, 2001, after a trial
and a determination by that court that Panuelo was liable for negligence and
loss of consortium.1
Panuelo also appeals from a post_judgment
order that denied his motions for a new trial and for relief from the
judgment.

It is worth mentioning that this is one of the largest personal
injury awards ever made in the Federated States of Micronesia, as the trial
court determined that plaintiffs were entitled to more than $380,000 in damages
due to Alfred Amayo’s injury; thus, we are concerned whether the verdict was
reached only after according the defendant all process that was due to him. This
case also was unusual in that the trial judge was not a resident of Pohnpei,
where the trial was held, and the trial judge did not have regular interaction
with Pohnpei counsel, or with the court clerks who were responsible for entering
and serving court process on the parties and on counsel. It is obvious that the
trial judge was navigating this case with some difficulty, because defendant
Ioanis Panuelo was acting pro se, and was not actively involved in his own
defense. However, it remains vital to the integrity and public perception of
court proceedings that any judgment rendered by our courts comport squarely with
the tenets of due process in the FSM Constitution. Accordingly, for the reasons
that follow, we reverse the trial court judgment, and remand this case for a new
trial.

[12 FSM Intrm. 369]

I. Facts

While working as a laborer on a construction project in Pohnpei, Alfredo Amayo
was injured when, on July 17, 1999, he fell from the second floor of the
building that was under construction. He suffered a spinal injury and was
rendered permanently paraplegic. Amayo filed a complaint against MJ Company, Ron
Pangelinan and Ioanis Panuelo d/b/a IP Enterprises, alleging negligence, breach
of contract, and "reckless, wanton and willful misconduct.2
" The complaint
requested that general, special and punitive damages be proven at the time of
trial.

Panuelo answered the complaint by denying any liability and
presenting various defenses based upon his position that Amayo was not his
employee, was not under his control or supervision at any time, and may have
been injured through his own negligence. Panuelo’s Answer was signed by him. No
attorney was identified as having prepared the document or as having undertaken
Panuelo’s legal representation.

Thereafter, a motion to amend the complaint was filed by counsel
for the Amayos. The proposed amendment added Alfredo Amayo’s wife and children
as plaintiffs, and added their claim for loss of consortium. Panuelo did not
oppose the motion, nor file an amended answer. The court did not issue an order
granting the motion to amend. However, the Amayos filed an amended complaint
after the parties’ status conference on June 1, 2000, and the case proceeded on
the basis of the amended complaint as if their motion had been granted. In all
subsequent filings and orders, the caption of the case reflected the new
plaintiffs, and evidence regarding loss of consortium was admitted at
trial.

At the June 2000 status conference, attorney Joseph Phillip
appeared "temporarily" on behalf of Panuelo, but "only for the purposes of that
hearing." No Notice of Appearance was ever filed by Phillip. However, documents
filed by the parties and orders issued by the court were thereafter served in a
random manner ) sometimes on Panuelo but not Phillip, sometimes on
Phillip but not Panuelo, and sometimes on both. Most notably, the Order Setting
Trial was sent (via mail) to Phillip, but not to Panuelo.

The trial, held on February 5, 2001, lasted one day. In the
morning, only defendant Ron Pangelinan and Dan Berman, Esq., acting in his
capacity as the Amayos’ legal representative, were present. The Amayos, Panuelo,
and attorney Phillip, were absent. The proceedings began with the judge making
the following inquiry:

COURT: Before we begin . . . I have a few questions
about this case because it’s _ my file doesn’t seem to be very well organized,
so I’m just _ I notice that Joe Phillip’s name appears at some point but _ I
don’t know. I may be mistaken but is Joe Phillip the one who represents the
defendant here or some of the defendants? Now, there’s no counsel representing
any of the defendants, right?

MR. BERMAN: Yes, that is my understanding, Your
Honor.

Trial Tr. at 5-6.

[12 FSM Intrm. 370]

In his opening statement, plaintiff’s counsel reminded the court
of an Order, issued by the court on September 15, 2000, which had stated that
Panuelo’s liability would be established by default, and that an order to that
effect would be entered, if Panuelo failed to produce certain documents pursuant
to a discovery request. Plaintiff’s counsel requested that the court enter a
default as to Panuelo’s liability, both on the basis of his failure to respond
to the September 2000 Order and on the basis of his failure to appear at trial.
Counsel also asked the court to rule on his pending request for $495.50 in costs
relating to the motion to compel discovery that had led to the court’s issuance
of the September 2000 order.

The trial court took these motions under advisement and stated
that he would make a decision "all at once after we’ve gone through everything."
During the morning session, while Panuelo was absent, plaintiff proceeded to
offer various documents as exhibits and to present the testimony of two
witnesses, Doctor Johnny Hedson and Isagani (Johnny) Ambuyoc, before the court
recessed for lunch. During the afternoon session of the trial, both Panuelo and
Phillip were present in the courtroom. They did not alert the trial judge to
their presence, and Phillip did not inform the court as to his role in the
trial. Plaintiff proceeded to offer the testimony of two more witnesses,
Wendolin Mendiola and Aren Palik, with no cross_examination requested by
Phillip. After Aren Palik testified, the following exchange took
place:

COURT: Wait a minute, I noticed that we have Mr. Joseph Phillip
sitting, the defendant’s counsel and we’ve been having all the people testifying
and leaving. Could we know where Mr. Phillip is coming into this matter because
if he wants to ask questions he should be permitted if he’s part of this case.
Are you representing somebody here today?

MR PHILLIP: Yes, Your Honor.

COURT: I’m sorry for ignoring you for so long, but
. . .

MR. PHILLIP: My apology, Your Honor, for not appearing this
morning. Saturday, Panuelo called me and said that the case was set for two
o’clock, that he had received subpoenas. He was served on Friday and he calls me
on Saturday and he _ apparently was mistaken because those subpoenas were for
the banks and he thought that was _ the case was set for two o’clock.

COURT: . . . this afternoon, you may. Who’s the next
witness going to be?

[12 FSM Intrm. 371]

MR. BERMAN: Your Honor, just prior to the next witness just a
statement of the record, a subpoena was drawn and served on Mr. Ioanis Panuelo
personally to appear in this Court for this trial at 9:00 a.m. The return of
service for that subpoena was filed December 15th and the service of subpoena on
Mr. Panuelo was December 14th, 2000, approximately forty_five days ago. Just in
clarification for the record.

COURT: Yeah, I see a copy of the affidavit of service in the
record.

MR. BERMAN: Thank you, Your Honor.

Trial Tr. at 59-60. During the afternoon session of trial,
Panuelo testified that he had not hired Alfred Amayo. Attorney Phillip offered
into evidence the employment contract between MJ Company and Amayo, to establish
that Amayo worked for MJ Company and that Panuelo was therefore not liable for
Amayo’s injuries. The Amayos’ counsel objected to the exhibit, on the ground
that liability should already have been established by default either when
Panuelo failed to provide documents during discovery, as ordered by the court on
September 15, 2000, or when Panuelo failed to appear for trial that morning and
plaintiff’s counsel had moved for a default. The judge allowed the employment
contract to be entered into evidence and stated that he would determine, later,
how much weight to accord it. The trial proceeded. At its conclusion, Phillip
requested and was granted the opportunity to provide his closing arguments in
writing, three weeks later.

Thereafter, the trial court
found in favor of Panuelo on two of the four counts.3
It found in favor of the Amayos and against Panuelo on the two
remaining counts ) negligence and loss of
consortium ) and awarded the Amayos $388,895.50. Amayo v. MJ
Co., 10 FSM Intrm. 244 (Pon. 2001). Panuelo then retained a new attorney who
filed motions for a new trial and for relief from the judgment. Both motions
were denied. Amayo v. MJ Co., 10 FSM Intrm. 371 (Pon. 2001).

II. Issues

Panuelo assigns error to five pre_trial events, five trial
rulings, and the denial of his two post_trial motions. The pre_trial incidents
challenged by Panuelo are as follows: (1) Allowing an attorney to make a limited
appearance on behalf of Panuelo at a status conference, (2) allowing the
plaintiffs to file an amended complaint without obtaining leave of the court,
(3) awarding attorney fees associated with a motion to compel discovery, without
first holding a hearing, (4) failing to serve Panuelo with an Order Setting
Trial, and (5) allowing the plaintiffs to engage in discovery after the deadline
for discovery had expired.

The events at trial to which Panuelo assigns error are as
follows: (1) Trial was held without the presence of the parties, (2) the case
was adjudicated based upon the plaintiffs’ amended complaint, (3) factual
findings were made which Panuelo contends had insufficient evidence to support
them, (4) the trial court did not "consider the duty of care owed by a
construction contractor in Pohnpei in 1999 when concluding that the Appellant
breached his duty of care," and (5) under these circumstances a judgment for
several hundred thousand dollars was "an abuse of discretion."

The post_trial rulings assigned as error by Panuelo are the
denial of his Motion for New Trial, FSM

[12 FSM Intrm. 372]

Civ. R. 59, and the denial of his Motion for Relief from
Judgment, FSM Civ. R. 60(b). Both motions were submitted in one document which
was filed on June 25, 2001, and denied by the court on September 19, 2001.
Amayo v. MJ Co., 10 FSM Intrm. 371 (Pon. 2001). Panuelo asserts that the
trial court erred when it concluded that six of the eight assigned errors in the
Rule 59 motion related to the "lack of trial notice" issue and therefore should
be considered in connection with the Rule 60 motion. He also challenges the
trial court’s determination that prior to trial, Panuelo had been a pro se
litigant with actual knowledge of the trial date and time. That determination
was the basis for the trial court’s denial of the motion for relief from
judgment.

III. Discussion

When a litigant raises an issue for the first time on appeal, he
or she is deemed to have waived the right to challenge the issue unless it
involves a plain error that is obvious and substantial and that "seriously
affects the fairness, integrity, or public reputation of judicial proceedings."
Hartman v. Bank of Guam, 10 FSM Intrm. 89, 95 (App. 2001). Because we
find that the trial court committed plain error when it proceeded to trial
without serving notice of the trial date on Panuelo, we need not reach all of
the issues raised by appellant. We find that the trial court had an obligation
to insure that Panuelo was served with the notice of trial issued by the trial
court, and on that basis will reverse the judgment of the trial court and remand
this case for a new trial.

The grant or denial of relief under Rule 60 of the FSM Rules of
Civil Procedure rests with the sound discretion of the trial court.
Amayo, 10 FSM Intrm. at 377. We review the denial of a Rule 60(b) motion
by the trial court under an abuse of discretion standard. Senda v.
Mid_Pacific Constr. Co., 6 FSM Intrm. 440, 445 (App. 1994). Rule 60(b)(1)
provides that a court may relieve an affected party from judgment on the basis
of "mistake, inadvertence, surprise, or excusable neglect."

An abuse of discretion occurs when (1) the court’s decision is
clearly unreasonable, arbitrary, or fanciful; (2) the decision is based on an
erroneous conclusion of law; (3) the court’s findings are clearly erroneous; or
(4) the record contains no evidence on which the court rationally could have
based its decision. Such abuses must be unusual and exceptional; an appeals
court will not merely substitute its judgment for that of the trial judge.
Jano v. King, 5 FSM Intrm. 326, 330 (App. 1992).

We find that the trial court committed an abuse of discretion
when it denied Panuelo’s motion for relief from judgment, because it committed
legal error when it determined that Panuelo had adequate notice of the date and
time of trial. Panuelo claimed in his motion for relief from judgment that he
was surprised by the date and time of trial, because he was never served with a
notice of trial. The trial court erred when, through its clerks’ office, it
failed to serve notice of the trial date and time on pro se litigant Panuelo. We
find that this error seriously affected the fairness, integrity, and public
reputation of the judicial proceedings, regardless of opposing counsel’s service
of a trial subpoena on Panuelo. Accordingly, we reverse this case and remand it
to the trial division for a new trial.

The additional points of error raised by appellant need not be
addressed. However, the Court also is concerned with the cumulative effect of
the errors asserted by Panuelo. Particularly, as discussed below, permitting an
attorney to make a limited appearance in this case led to errors of service that
permeated the entire case below and prejudiced the defendant. Also, it seems
unfair to a defendant to enter a judgment against him on an amended complaint,
when leave was never granted for the filing of that complaint. The Court also is
concerned that plaintiffs were permitted generous leeway in discovery, and that
most of the evidence that was used to support the large verdict against
defendant was not subject to cross examination or otherwise contested. The
following is a discussion of the particular point on which we base our decision
to reverse.

[12 FSM Intrm. 373]

A. Failure to
Serve Notice of the Trial Date and Time on Pro-se Litigant
Panuelo

The trial court’s decision to allow the appearance of attorney
Phillip for the limited purpose of a status conference, was not preserved and
presents no legal basis for prevailing on appeal. Nonetheless, it will be
considered in the context of our discussion of pro se litigants, below. The
issue is also related to service of the notice of trial, and whether the trial
court’s failure to serve notice on Panuelo deprived him of due
process.

The final pre_trial issue raised by Panuelo challenges the fact
that attorney Phillip was served with the Order Setting Trial, while Panuelo was
not. The trial court’s failure to serve Panuelo was an obvious error, because
Phillip was not the attorney of record. According to the court file, Panuelo was
proceeding without legal representation. Therefore, the court was required to
ensure that Panuelo was served with the notice of trial. FSM Civ. R. 5. When
this issue was raised after the trial, in a Rule 60(b)(1) motion for relief from
judgment filed by Panuelo’s post_trial attorney, the trial court denied the
motion on the ground that Panuelo received adequate notice of the trial when he
was served with a Subpoena to appear and testify at 9:00 a.m. on February 5,
2001. Amayo, 10 FSM Intrm. at 379.

The record confirms that a document, captioned "TRIAL SUBPOENA"
and requiring the recipient to appear at the trial on February 5, 2001, at 9:00
a.m., was personally served by a representative for Dan Berman, counsel for
Amayos, by hand_delivery upon Panuelo on December 14, 2000, seven weeks prior to
the trial. However, during the week immediately preceding trial, several other
subpoenas were issued to other witnesses. Copies of the subpoenas for the Bank
of the FSM, Bank of Guam, Bank of Hawaii, and the Court of Land Tenure were
served upon Panuelo. These later_issued subpoenas required the recipients to
appear at a proceeding "to be held at the FSM Supreme Court, in Palikir, State
of Pohnpei on Monday, February 5, 2001 at 2:00 p.m., then and there to testify
as a witness in this action." In an affidavit filed after the trial, Panuelo
states that because these subpoenas required attendance at 2:00 p.m. on February
5th, he believed that the time of trial had been changed to the
afternoon.

The issue of how Panuelo received notice of the trial is tied to
the trial court’s decision to allow attorney Phillip to appear for the limited
purpose of representing Panuelo at a status conference. Accordingly, we address
the matter of limited appearances.

The record shows that, prior to the day of trial, Phillip’s
appearance in this case had been limited to attending a status conference that
was held many months before trial. That limited appearance appears to have
resulted in legal documents, orders, and notices being served in a somewhat
erratic manner. It became unclear who should receive filings _ Panuelo, Phillip,
or both. It also created a situation of uncertainty as to whether Panuelo could
be contacted directly, or whether counsel for the plaintiffs could communicate
only through Panuelo’s "limited appearance" attorney.

It follows that other uncertainties are created, as well, when a
court allows the limited appearance of an attorney ) e.g.,
whether the individual who is represented in a "limited" manner understands that
he or she is personally responsible for understanding the content of legal
documents that are drafted by the attorney but signed by the individual litigant
pro se, or whether such individuals understand the import of the claims that
have been brought against them. It is not clear whether litigants represented in
a limited manner understand that their attorney is not taking full
responsibility for prosecuting or defending them.

In light of the above, trial judges should consider carefully,
on a case_by_case basis, whether to allow "limited appearances." As a general
rule, attorneys should either enter formal appearances and accept full
responsibility for a case, or not be permitted to appear before the court.
Moreover, if the

[12 FSM Intrm. 374]

court learns that an attorney is providing legal advice and/or
drafting documents for a pro se litigant but concealing that fact from the
court, the court should consider ordering the attorney to file a formal Notice
of Appearance or be subjected to sanctions.

We return to an analysis of the trial court’s failure to serve
Panuelo with the Order Setting Trial. As noted above, that failure was an error.
We cannot deem this error harmless under the specific circumstances of this
case, and find that the fundamental tenets of due process were violated by the
trial court’s failure to provide notice of the trial to Panuelo as a pro se
litigant. Accordingly, we deem the trial court’s denial of Panuelo’s motion for
relief from judgment under Rule 60 an abuse of discretion.

"Notice and an opportunity to be heard are the essence of due
process of law." In re Sanction of Michelsen, 8 FSM Intrm. 108, 110 (App.
1997) (quoting In re Extradition of Jano, 6 FSM Intrm. 93, 99 (App.
1993)).

Specific requirements of due process may vary depending on the
nature of decisions to be made and the circumstances. At the core however is the
right to be heard. Etpison v. Perman, 1 FSM Intrm. 405, 423 (Pon. 1984).
The fundamental concept of procedural due process is that the government may not
be permitted to strip citizens of "life, liberty or property" in an unfair,
arbitrary manner. Before such important individual interests are exposed to
possible governmental taking or deprivation, the Constitution requires that the
government follow procedures calculated to assure a fair and rational decision
making process. Suldan (II), 1 FSM Intrm. at
354_55.

Semes v. FSM, 4 FSM Intrm. 66, 74 (App.
1989). Because the trial court committed error when it failed to serve pro se
litigant Panuelo with the Order Setting Trial, it violated Panuelo’s right to
notice and an opportunity to be heard in this civil action, which ultimately
resulted in a judgment against him in excess of $380,000. Even though the record
contains evidence that Panuelo was provided with a subpoena by opposing counsel,
which accurately stated the trial date, we believe that it is essential that the
trial court insure that its own notice procedures satisfy the requirements of
due process, especially where pro se litigants are involved. When unrepresented
parties are deluged with legal documents drafted by attorneys on the opposing
side, it is conceivable that confusion will result. Panuelo establishes in his
affidavit accompanying his motions for post-trial relief that actual confusion
did result in this case. He was served with trial subpoenas which contained two
different times. The subpoena commanding his personal appearance was for
February 5, 2001 at 9:00 a.m., and was served forty-five days in advance of the
trial. The subpoenas to the banks and to the Court of Land Tenure were served on
Panuelo the week immediately preceding the trial, and required that these
witnesses appear for at 2:00 p.m.

Rule 5(a) of the FSM Rules of Civil Procedure requires that:
"Except as otherwise provided in these rules or by order of the court
. . . every written . . . notice . . . shall be
served upon each of the parties." FSM Civ. R. 5(a). A notice of trial was
issued, and was not served on Panuelo. It is mandatory for the court to serve
notices on parties, unless they are in default. The court must insure that its
own notices and orders are properly served on pro se litigants
) pro se litigants should not be compelled to rely upon opposing counsel
to inform them of a trial date. This would discharge the court of its obligation
to provide litigants with notice, and erode the due process protections that the
FSM Constitution recognizes.

The record shows that the trial court made a proper inquiry as
soon as it saw Panuelo in the court room on the afternoon of the trial, and that
it did not proceed with the trial until it determined that Panuelo had, in fact,
been served with notice of the trial date and time. However, the record also

[12 FSM Intrm. 375]

shows that Panuelo’s presentation on the afternoon of the trial
was limited to the issue of damages, and that evidence as to Panuelo’s liability
already had been submitted to the trial court without any opportunity for cross
examination or objection by Panuelo. It should have been clear to the trial
court that Panuelo intended to fully defend himself against the claims advanced
by the Amayos, and the trial court should have received and considered Panuelo’s
evidence contesting his liability. The trial court easily could have concluded a
trial on the full merits of the case by extending or delaying the proceedings
for a few extra hours, but chose instead to base its determination of liability
upon evidence that Panuelo did not have an opportunity to oppose.

It is unfortunate that Panuelo chose to retain the services of
an attorney who did not take steps on the day of trial to attempt to recall
witnesses and reopen the liability issue. The conduct and performance of
attorney Phillip on the day of trial demonstrates a lack of diligence and
preparedness. However, the law favors the disposition of cases on their merits,
and error on the part of the trial court in failing to insure that it provided
Panuelo with notice of the trial date and time brings into question the
fairness, integrity, and public reputation of judicial proceedings.

We acknowledge that trial courts may be frustrated when
confronted with a pro se litigant whose conduct appears to be dilatory and
irresponsible. Nonetheless, the procedural due process guarantee of notice
protects not only the parties involved but upholds the integrity of the court as
well. Where, as here, the integrity of the court is brought into question
because the court did not follow its own procedures for providing Panuelo with a
notice of trial, the only remedy is to permit a new trial where adequate notice
is given.

IV. Conclusion

We hold that the trial court committed plain error, and violated
appellant’s right to due process, when it failed to serve notice of a trial date
and time on appellant, who is a pro se litigant. It therefore abused its
discretion when it denied Panuelo’s motion for a new trial. For the reasons set
forth above, we reverse the judgment of the trial court and remand this case for
proceedings not inconsistent with this decision. The clerk of courts is hereby
ordered to confer with Panuelo and the bank at which the bond Panuelo posted is
being held, and make arrangements for release of the remainder of the bond to
Panuelo.

* * * *

________________________________________

Footnotes:

1
.The award included $108,000 for lost wages, $5,400 for
medical expenses, $225,000 for pain and suffering, $25,000 for the wife’s loss
of consortium claim, $10,000 to each of the three children for "loss of parent
consortium," the Amayos’ costs associated with this litigation, and $495.50 in
costs associated with a pre_trial discovery order.

2
.Below, this case was captioned "Alfredo Amayo, and Elsa
Amayo, individually, and as next friends of Alfie Amayo, April Amayo, and
Jilleen Amayo, Plaintiffs, v. MJ Company, Ron Pangelinan and Ioanis Panuelo
d/b/a IP Enterprises, Defendants." The trial court found in favor of defendants
MJ Company and Pangelinan on all counts. They are not parties to this
appeal.

3
.The trial court found in favor of Panuelo on count two of
Amayo’s complaint ) that his contract
contained a warranty that the workplace was safe ) and count three ) that Panuelo was willful, wanton, and reckless in
failing to provide medical care and in failing to provide a safe workplace.
Amayo v. MJ Co., 10FSM Intrm. 244, 249 (Pon.
2001).